Nature and Classification

Suppose that Marcus, the owner of a farm, is considering how to dispose of the farm on his death. He may decide that he wants the farm to go to his son. How­ever, to provide for his wife, he decides that he wants to delay this so that his wife can stay on the farm until her own death.

As long as the usufruct lasted, the usufructuary was in a very similar position to that of an owner. The actual owner was all but excluded from the property, having no present rights to use and enjoy the property, and for this reason is often referred to as ‘bare owner'. It is important to understand, though, that the usufructuary was not owner. The usufructuary was under an obligation to preserve the substance of the property^[1534] so that, when the usufruct came to an end, it could be turned over to the owner unimpaired. This has been described as the ‘overriding principle' of usufruct, referring to the Scots and South African law,^[1535] but it equally well applies to Roman law.

Because of this obligation, it was in principle not possible to create a usufruct over anything that was used up through normal use, such as money or wine.^[1536] However, this proving inconvenient, a resolution of the Senate altered the posi­tion to allow for a usufruct in such things, subject to the heir being given security.^[1537] In these cases, the usufructuary was given ownership of the property, subject to a personal obligation to restore an equivalent. It was therefore not a true usufruct, and was known as a quasi-usufruct instead.

Certain other, similar rights also came to be recognised. Usus was the right to use the property, but not to take the fruits.^[1538] Habitatio was similar to usus, but related specifically to a house.^[1539] Finally, it was also possible to grant a right to the ser­vices of slaves and animals.^[1540] These rights are not recognised in Scots law, and so they are not considered in detail in this chapter. These rights together — usufruct, usus, habitatio, and services of slaves and animals — are sometimes called ‘personal servitudes’. This categorisation as servitudes, though, may be post-classical, and may even beJustinianic. It is not clear why this category of personal servitudes was devised, as they have very little in common with the praedial servitudes that we saw in Chapter 13. Accordingly, the term ‘personal servitude’ is avoided in this chapter.

B.